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Judgment
Heard Mr. U.C. Mittal, Advocate, for the complainants and Mr. Rajan Raj, Advocate, for the opposite parties-1 & 4.
Aayush Suseelan Vanchanmal and Suseelan Athiruvelil Kochkunju filed aforementioned complaint, for directing the opposite parties-1 & 4 (hereinafter referred to as the builder) (i) to revise the cost of the flat as per scheme launched in June, 2013 and give interest relaxation, EMI and repayment etc. up to August, 2016 and also to revise/resettle subject to extended date of possession, (ii) to adjust the cost of 74 sq.ft. land, which has been reduced in revised layout plan, towards balance payment, (iii) to pay compensation of Rs.20/- lacs, for cancelling premium facilities i.e. dedicated 3 acres podium garden and premium club house, (iv) to provide information of entire chain of title of the land, opinion of the Advocate, in respect of title of the land, encumbrance on the land, date of possession of the flat, nature of the title to be passed upon the complainants and common area and facilities to be provided by the builder, (v) to provide draft copy of Agreement to sell, (vi) to execute and register the Agreement to sell, (vii) to pay interest on the loan to opposite party-2 and not to recover instalments. In alternative (ix) to refund entire amount deposited by the complainants with interest @18% per annum from the date of respective deposit till payment, (x) to pay Rs.50/- lacs as the damages for escalation of the cost, (xi) to pay damages of Rs.50/- lacs, for mental agony and harassment, (xii) to pay costs of the litigation and (xiii) any other relief, which is deemed fit and proper in the facts and circumstances of the case. At the time of final argument, alternative relieves- (ix) to (xiii) were pressed.
The facts, as stated in the complaint and emerged from the documents attached with the complaint, are that the builder was a company, engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2012, the builder launched a project of group housing in the name of “Indiabulls Greens” at village Kon, taluka Panvel, district Raigad, Maharashtra and made wide publicity. On coming to know about this project, the complainants visited the office and site of the builder and discussed about the project. The representatives of the builder assured that the building would be completed and possession be delivered till December, 2014 or January, 2015. The complainants booked a 3BHK flat on 27.11.2012 and were allotted Flat-901, Tower-21 (carpet area 1390 sq.ft, super area 2084, total sale price Rs.14373220/-). The complainants opted for “Interest Subvention Scheme”, under which 15% of total sale price had to be paid within 30 days, 80% had to be financed by opposite party-2 within 45 days and 5% had to be paid at the time of possession. The builder agreed that till offer of possession, the interest on the loan amount would be borne by them. M/s. Indiabulls Housing Finance Limited (opposite party-2) advanced the loan amount of Rs.11853882/- on 31.12.2012 and paid to the builder, on execution of tripartite agreement dated 31.12.2012, in which the builder took liability of interest on the loan for a period of 24 months. The builder issued an email dated 14.05.2013, for execution of agreement for sale. The complainants vide email dated 16.05.2013, inquired about statutory approval/clearance and the stage of construction but the builder gave vague reply vide email dated 13.06.2013. The complainant visited the site on 08.06.2013 & 13.07.2013 and found that even excavation work of Tower-21 was not done. The builder launched a second Phase scheme for sale of the flats of Tower-21, in June, 2013. In this scheme, the costs of the flats of Tower-21 was reduced (total reduction of Rs.2315230/-) and expected date of possession was given as December, 2018. The complainants then approached the builder and made inquiry in respect of second Phase. They were informed that in latest approval of layout plan, podium garden and premium club house were cancelled as such the cost of the flats were reduced. The complainants asked to provide benefits of second Phase to them, which was denied. This complaint was filed on 30.06.2014 on the allegations that the builder has committed unfair trade practice, inasmuch as 95% sale price was realised till December, 2012 but the construction was not started and layout plan has been changed, deleting podium garden and premium club house and benefit of reduction of price was denied to them.
The opposite parties filed their separate written reply, in which, material facts have not been denied. The builder took plea that the complainants were not a consumer but investor as such the complaint was not maintainable. The complainants booked the flat in Phase-1 scheme and bound by the terms and conditions of allotment letter, they cannot claim benefits of Phase-2 scheme. It has been denied that Tower-21 had become part of Phase-2 scheme or any unfair trade practice was committed. Under tripartite agreement dated 31.12.2012, the builder took liability of interest on the loan for a period of 24 months, which has no bearing on the date of offer of possession. From very beginning the complainants were given due date of possession as June, 2017 and not December, 2014. Booking Summary Sheet filed by the complainants is a fabricated document. Super area mentioned in the allotment letter was tentative and as per clauses-7 and 29, the builder was authorised to change it to the extent of 10%. Opposite party-2 granted loan of Rs.11853982/-to the complainants on their request. The complainants are bound by the terms and conditions of tripartite agreement dated 31.12.2012. It has been falsely stated that till 08.06.2013, excavation work of Tower-21 was not started. At the time of booking, the documents relating to title of the builder over the land were shown but the complainants began to inquire again about the title deeds. It has been denied that any provision of Maharashtra Ownership of Flat (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 has been violated. The builder is ready to adjust the price of reduced super area.
The complainants filed their Rejoinder Replies. The complainants filed various documentary evidence and Affidavits of Evidence of Suseelan Athiruvelil Kochkunju and Aayush Suseelan Venchamala. The builder filed Affidavit of Evidence of Kapil Bhandari. Opposite party-3 filed Affidavit of Evidence of Manmohan Singh. Both the parties filed their short synopsis.
We have considered the arguments of the counsel for the parties and examined the record. This fact that the flat in dispute was booked by the complainants on 27.11.2012 and 95% of sale price was realized till 31.12.2012, are not disputed.Under Section-3 (2) (f) of Maharashtra Ownership of Flat (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963, the builder is bound to given expected date of possession. According to the complainants, the builder had assured to give possession till January, 2015. If the builder failed to deliver of possession within three years with grace period of six months, they are liable to refund the money under Section-8 of this Act. In Additional Written Arguments filed by the builder on 09.11.2021, it has been stated that the construction of Tower-21 was completed and they had applied for issue of “Occupation Certificate” on 28.01.2020 but it has not been issued till today. From this fact, it is clear that the builder is not in position to deliver possession.
Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held the buyer cannot be made to wait for unlimited period possession.
ORDER
In view of aforesaid discussions the complaint is allowed for alternative relief. The builder is directed to refund entire money of the complainant with interest @9% per annum, from the date respective deposit till the date payment, within a period of two months from the date of the judgment.